Albuquerque Divorce Lawyer Blog

Unlike other states, in New Mexico, the process for obtaining a legal separation is nearly identical to that for getting a divorce. Parties often mistakenly believe that they can get a legal separation faster and cheaper than they can get a divorce. However, in granting a legal separation the New Mexico courts will still need to divide all of the property and debts, and determine child custody and child support, which means that obtaining a legal separation, is not any faster than the divorce process. Nor does it save on attorney fees.

Most of the same documents will need to be filed as with a divorce and nearly all of the same steps will be taken by the court, except that at the end of the legal separation process the parties cannot legally remarry. In the end, if a divorce is inevitable and the end objective, then a legal separation will greatly increase the attorney fees, time and stress of the process.

This leads to the question, why file for a legal separation? Some parties may pursue a legal separation for religious reasons if their church does not frown on legal separation the same way it does on divorce. Others may file for legal separation rather than divorce because in some cases both parties may keep the health benefits earned by one spouse if they are legally separated but not if the parties are divorced.

Given the limitations of health care in the United States, this second reason can be a powerful incentive for seeking a legal separation rather than a divorce. However, the health care issue can be pretty tricky. Not all insurance policies allow continued coverage for parties that are legally separated. It is therefore important to check with the individual policy before pursuing this option.

Essentially, anyone contemplating a legal separation rather than a divorce should consult with an experienced divorce and family law attorney. It may be that a legal separation is not the best route. And even if it is, it is important to understand all of your rights and obligations in moving forward.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Two unique facets of the New Mexico law governing divorce make the process of getting a divorce in New Mexico very different from other states. First, New Mexico does not have a waiting period that must be observed before filing for divorce. This means that parties who have been married for one day have the same standing to file a petition for dissolution of marriage (the document filed with the court that begins the divorce process) as parties who have been married for 25 years.

However, it is important to note that even though there is no official waiting period, the party filing for divorce must still meet the jurisdictional requirement of the New Mexico courts, which requires the party to have lived in New Mexico for at least six months prior to filing for divorce.

The second major difference between New Mexico and other states is that New Mexico is a No Fault divorce states. This means that the courts here will grant a divorce on the basis of incompatibility alone and do not require, for instance, that one party show that the other has committed adultery or any other wrong against the marriage.

Only one party needs to plead incompatibility for the New Mexico courts to begin the divorce process. Typically, the family law judges will not hear arguments about infidelity or bad behavior by one party unless they directly affect custody or some aspect of property and debt division essential. Neither will the court entertain counter arguments to incompatibility.

Many parties find the No Fault policy unsatisfying because the court does not hear about all of the hurtful things their spouse may have done. However, the positive side of a No Fault divorce is that embarrassing information about the parties' personal habits or sexual proclivities can be kept private and will not necessarily need to be debated in open court. For these reasons, conflict is also reduced. This too speeds up the divorce process and results in substantial reduction of emotional and financial costs to the parties.

Even though the lack of a waiting period and the policy of No Fault make the process of divorce in New Mexico somewhat simpler than other states, it is still very important that parties to a divorce proceeding consult an attorney as early as possible in the process so that they can make sure all that they understand all of their rights and responsibilities under the law.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

According to a recent article in the Albuquerque Journal, the number of child support enforcement cases pending in New Mexico has reached a record high. The Child Support Enforcement Division, called CSED for short, is a part of the New Mexico Human Services Department and is responsible for enforcing parents' child support obligations. CSED officials believe that the increase in cases is due to the bad economy, which means that the enforcement cases have increased but that actual collections of unpaid back child support are down.

CSED can get involved in a divorce or paternity case in multiple ways. The most common situation is when the custodial parent gets any kind of financial assistance from the State or Federal government to assist them in raising their child. In these cases CSED automatically sets up a case and will begin trying to establish and collect support from the non-custodial parent. Where applicable, part of the money collected from the non-custodial parent will go to repaying the State for the assistance it has paid to the custodial parent. A CSED case may also be automatically opened when the custodial parent applies for Medicaid coverage for a child. And, finally, a parent who is not receiving public assistance or Medicaid, but who has a child support order that is not being followed can go to CSED and ask that a case be opened up on their behalf.

Once an enforcement case is opened, CSED has extensive power to force non-custodial parents to pay support, including the garnishment of wages, the seizure of bank accounts and the suspension of driver's licenses. Thus, if you are a parent who gotten behind on support for whatever reason, it is important that you seek the advice of an attorney experienced in child support matters immediately before CSED begins to take enforcement and collection action against you. In turn, if you are a parent who is entitled to support but is not receiving it, speaking with an attorney can show you the various options available to begin encouraging your child's parent to pay support.

CSED is generally very helpful and cooperative so long as you address the situation. This means that you immediately contact them to address a problem as it arises. Often times, there are solutions that both parties and CSED can live with. Due to their vast experience in child support matters, CSED attorneys will know every available alternative short of financial ruin for either party. That is the good news. The bad news is that CSED is overwhelmed with cases so it may be difficult to make contact with someone with decision-making authority. This alone will typically indicate and justify hiring your own attorney.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

With the enormous technological advances and explosion of the internet during the past few decades, New Mexicans are able to exchange more information and communicate more effectively than ever before. Access to the internet can be an amazing tool, for instance, it can help you research a variety of legal topics, including family law blogs like this one. However, the posting of personal information on blogs and social networking sites like Facebook and MySpace can sometimes pose a problem in family law cases. This is particularly so in contested divorce and child custody cases.

Imagine two parents engaged in a fierce child custody battle wherein each parent alleges that the other is unfit to raise their children. If one parent, or their friends, posts pictures of a weekend party with that parent consuming alcohol, or engaging in other potentially dangerous or unsavory behavior, that post could easily find its way into the hands of the other parent. In fact, one is safe to assume that it will.

In turn, that post can be presented a custody evaluator or Guardian Ad Litem in charge of making a recommendation to the court with respect to custody. Likewise, the evidence will eventually be presented to the judge if the case makes its way to trial. This is also true of negative comments made about the other spouse on a blog or during a Facebook chat. The opposing party may even be able to find out the other party is misusing community funds or hiding assets based on what they say in internet postings. Just as the internet can be a great way to research legal topics or sports trivia, it can be an excellent way for opposing parties in court cases to investigate each other's habits, friends, associates and activities.

Any party to a family law proceeding, whether it is a divorce, a paternity action or a renewed dispute over child custody and/or child support, should consult an experienced divorce and family law attorney immediately. As part of that consult, parties should advise their attorney of any information about them that may be available on the internet. Some attorneys advise parties to completely discontinue use of blogs and social networking sites until a divorce action is completed, or at the very least make sure that privacy settings are set as high as possible. Remember that everything a party posts on the internet has the potential to be reviewed by the public and, in turn, is most likely admissible in family court proceedings, which can be very damaging. The best policy is to resist the urge to share on social networking sites. As good as it might feel to share your innermost thoughts, the internet is not an intimate conversation. Instead, it is a public forum and should be treated as such.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

One of the questions most frequently asked by divorce and family law clients is "How long is this going to take?" There is no easy answer to that question. The first question is where in New Mexico are you filing your divorce, paternity or family law action? The case load for the courts that cover Albuquerque, Rio Rancho and Santa Fe are pretty heavy, so it generally takes several months to get a hearing date in those areas. This wait applies to each and every hearing.

Hearing dates are important because that is the time when parties go before the judge on specific issues related to their divorce when they cannot resolve the issues themselves. Thus the fastest way to conclude the process is through early settlement and/or mediation. If the parties can agree on a the division of property and debt, child support and child custody, and other issues related to the divorce, then they can incorporate those decisions into a marital settlement agreement which upon filing with the Final Decree of Dissolution of Marriage will conclude the process. This can be completed in a matter of weeks when the parties are so motivated.

Often this is not possible for any number of reasons, some legitimate, some not. In many cases, each every step of the divorce is a struggle requiring the intervention of the Court. Each time the court's assistance is enlisted by way of a Motion, the process if further delayed due to long wait necessary to get a hearing on a Motion. Finally, after what could be months extending into years, the parties must at some point go to trial. A trial setting takes even longer to get than a Motion hearing.

In sum, the most efficient way to complete a divorce or family law matter in New Mexico is to understand your rights and responsibilities. Then hope that the other party has done the same. If both parties can behave rationally and reasonably, the process can move pretty quickly. In the absence of reason and rationality, the process can take a very long time. In the case of a high conflict divorce or family law proceeding, the duration of the process is probably the least of your problems. Keep this mind before declaring war on your ex.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

The court rules governing divorce and family law in New Mexico provide that, whenever a petition for dissolution of marriage is filed, the district court shall enter a temporary domestic order, or TDO. In Albuquerque, Rio Rancho and Santa Fe, the TDO is automatically issued by the court along with the summons when the petition for dissolution of marriage is filed. The TDO applies to both parties to the divorce action and should be personally served upon the respondent, along with the petition for dissolution.

The language of the TDO order may vary from county to county. However, the underlying purpose of the TDO is to ensure that the parties maintain the status quo while the divorce action is pending. This means that neither party can make the other leave the marital residence and neither party can run up debt or sell off assets. The TDO also forbids both parties from removing their children from the state or to otherwise interfere with the children's relationship with the other party.

Parties often disregard the TDO as unimportant, generic paperwork issued by the court. In fact, they may not even read the TDO, which is a big mistake. Violation of the TDO is treated the same way as any other violation a court order and can result in a holding of contempt against the offending party. A contempt finding may result in fines and even jail time.

Due to the potentially severe consequences of violation, any deviation from the terms of the TDO must be approved by the Court prior the action being taken. Given that the TDO applies from the moment a petition for dissolution of marriage is entered, the parties to a divorce action should contact an experience divorce and family law attorney immediately in order to ensure that they understand their rights and responsibilities under the TDO.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Jurisdiction is the term used to refer to a court's authority to decide certain cases. In order to hear a case, the court must have jurisdiction of the subject matter of the case and over the parties involved in a case. In a divorce or family law case, issues of jurisdiction can get somewhat complicated when the parties are living in different states.

In New Mexico, the district courts (as opposed to the magistrate or metropolitan courts) have subject-matter jurisdiction over family law cases. The baseline rule is that any person can file a petition for dissolution of marriage with the district court of the New Mexico County in which they have resided for at least six months. The New Mexico resident can file the petition whether or not their spouse currently lives in New Mexico.

However, in cases where the spouse lives outside of the state, the New Mexico courts may not have personal jurisdiction over that spouse and may not be able to issue a complete divorce ruling. The New Mexico courts can exercise personal jurisdiction over the out-of-state spouse under the following circumstances: 1) the out-of-state spouse agrees to submit to the jurisdiction of the New Mexico courts; 2) the out-of-state spouse actually participates in the divorce litigation by filing pleadings and appearing at hearings; or 3) the out-of state spouse lived in a marital relationship within New Mexico at any point in the past.

If none of the preceding conditions exist, the New Mexico district court may have jurisdiction to dissolve the marriage, but may not be authorize to distribute any of the parties' property or debts. The general rule is that the courts here have no jurisdiction over property located in another state without the consent of both parties. The issue of jurisdiction can be further complicated if there are child custody or child support issues between states.

Improper jurisdiction can result in an entire divorce decree being set aside, including the orders from the court addressing the division of property and debt, alimony, child custody and child support. Anyone faced with a divorce action in which one spouse lives outside of the state of New Mexico should consult with an experienced divorce and family law attorney prior to initiating court action in order to ensure that jurisdiction is proper.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

The occasional trip to the casino or racetrack can be a fun and harmless outing. But with so many casinos to choose from, especially in the Albuquerque and Santa Fe area, many New Mexicans know from personal experience that gambling can often get out of control. Not infrequently in New Mexico, gambling issues lead to divorce. Divorces are complicated and contentious particularly in the division of property and debt. They become doubly so in the face of gambling debt. Though much of the damage may already be done, there is some relief under New Mexico law for the innocent spouse.

As a community property state, the general rule in New Mexico is that all debts incurred during the marriage are community. This means that upon divorce each spouse shall be responsible for payment of fifty percent of that debt, no matter which spouse actually incurred the debt. However, the New Mexico legislature has recognized the potential unfairness that would result to innocent spouses if the traditional community property rule is applied to gambling debts. As a way of addressing that potential unfairness, the legislature added NMSA §40-3-9.1 to the domestic affairs statutes, which provides that a gambling debt incurred by a married spouse becomes the separate debt of the spouse that incurs the debt.

While the law stating that gambling debts are separate is clear, identifying those debts during a divorce may be tricky. Often gambling debts can be masked as credit card debt because the incurring spouse took out cash advances to pay for gambling. Or parties may take out a home equity loan in order to pay off one spouse's gambling debts. Thus, it is very important for parties to a divorce where one or both spouses have incurred gambling debts to consult with an experience New Mexico divorce and family law attorney in order to ensure that a spouse does not wind up taking on debt as part of a community property settlement that should really be apportioned to the other spouse.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

During the past few decades, there have been numerous advances in medical research regarding fertility. These advances are often a blessing for people who have been unable to have children, but they can also create complications for the family law courts. For example, can sperm donors be required to pay child support for the children created by their donation? The New Mexico courts have examined this very issue and the answer they have arrived at is perhaps yes, perhaps no, but always maybe.

Generally, the biological parents of a child are responsible for supporting that child. This obligation extends to biological fathers regardless of whether or not the father was ever married to the child's mother and regardless of whether or not he intended to conceive a child with the mother. The New Mexico court of appeals has ruled that when a woman is artificially inseminated by a licensed physician with the sperm of an anonymous donor, that donor will not be obligated to pay child support even though he is the biological father of the woman's child because such a case does not result in a true parent-child relationship.

However, the issue of sperm donor responsibility becomes substantially more complicated when parties privately conduct artificial insemination without the assistance of a doctor, or through a sexual encounter, with the understanding that the father is acting only as a sperm donor. Even when the parties agree in writing that the father is acting as a sperm donor and will not be obligated to pay child support, the court may find that the father/sperm donor is required to pay support if he engages in conduct that creates a parent-child relationship. A sperm donor may become a father when he acts like a father. This conduct can include things like acknowledging that he is the child's father. It can also include regular contact with the child. A regular visitation schedule will almost certainly result in a finding of paternity with consequent child support obligations. Any form of child custody would clearly indicate paternity and child support. Other acts by the sperm donor that create a father-child relationship may also result in finding by the court. The court will often look to the expectations of the child. As with all matters involving children in family court, it is the best interests of the child that are conclusive.

Thus, very simple acts, when taken together over time, can create a parent-child relationship in the eyes of the court. This is the case even when this may not have been the intention of the mother or the father. As such, anyone considering sperm donation, whether anonymous or not, should consult an attorney in order to fully understand the rights and responsibilities that come with such a donation. Then all behavior toward the child in the future should be consistent with the sperm donor's intentions.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Child Support Guidelines provide a specific set of rules governing the imposition of child support. The guidelines provide two different worksheets for purposes of calculating child support. Worksheet A is used when the child (or children) for whom support is being paid resides with one parent more than 70% of the time. Worksheet B is used when the child's time with the parents is more evenly divided.

Both worksheets incorporate the following factors: the gross income of both parents, the number of children to the parties, payments made for work related day care, and payments for health insurance costs for the child. In special circumstances, other amounts can be included in the child support worksheet, like regular recurring school expense or medical expenses for the child. However, no deductions are for any items other than those explicitly allowed for in the Child Support Guidelines.

While the guidelines are pretty straightforward, complications can arise when a parent has child support obligations for children with different partners. For example, a father may have children with three different women. The father is most definitely responsible for child support for each child. The child support worksheets will be applied to each child. However, if each child support calculation were determined separately under the guidelines, the total support owed by this father would often exceed 50% of his total monthly income, which is prohibited by the guidelines. To avoid this, the law dictates that each successive worksheet for later born children must reflect a reduction in the father's income for prior child support obligations.

Essentially, the New Mexico Court of Appeals has ruled that the father's income should be reduced by the amount of child support he pays for his children with different mothers. This reduction is applied to the each child's support based on birth order, which will often result in the third child getting less support than the first and second child. This result may seem unfair for later born children, but the position of the New Mexico courts is that the resulting unfairness will be corrected as the older children turn 18 and the father quits paying support for each of them. As that happens, the mother can petition the court to reevaluate child support to reflect the father's increased income as his prior support obligations go down.

The issue of calculation of child support for multiple children with different parents can get pretty complicated. More importantly, it can also get pretty contentious particularly for the mothers of later born children. Often times, they simply will not accept that the law dictates a reduction of the father's income for prior child support obligations. These cases, as with many divorce and family law matters, can be driven more by emotion that law. Parties faced with this situation would be well advised to seek the attention of an experienced New Mexico divorce and family law attorney. The law is straightforward and both parties should proceed with this in mind. Moving forward on emotional grounds can be extremely stressful and costly to all involved.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

One of the most complicated and contentious issues in a divorce is the division of marital property and debt. The first great challenge is often identifying and valuating the marital property. Given that New Mexico is a community property state requiring equal division of all marital property and debt, both parties have a significant interest in making sure that all marital assets are properly identified and valued.

Unfortunately, sometimes one or both spouses will try to manipulate assets or asset values. They may try to classify community property as separate property. Other times, one or both parties will try to distort the value of the property, up or down, depending upon motive. Worst case, one or both parties will try to hide assets.

So what can be done if a spouse suspects that the other spouse is hiding assets? The first step is to use the tools available under the New Mexico Rules of Civil Procedure and begin the discovery process. Discovery is the system devised by the courts for the exchange of information in court cases and it can include written requests for information (called interrogatories, requests for production and requests for admission). In a divorce case, the main focus of discovery is getting both parties to accurately identify all of their debts and assets. The discovery process also allows the parties to hold depositions, which is an interview, held under oath at which the spouse being interviewed can be required to answer questions about the existence of assets. Parties can also be required to bring documents to depositions.

If the parties have engaged in the traditional discovery process and one spouse still believes that the other is hiding assets, it may be time for that party to think about hiring an investigator. Such investigators are typically certified public accountants who are trained in reviewing financial records to look for evidence of missing assets. Basically they are looking for a paper trail connecting various deposit and receipts and tracing where all of the marital income went. Sometimes the investigator is appointed by the court as an expert charged with reviewing the financial records provided during discovery.

Hiring an investigator or asking the court to appoint an expert can be very expensive. Neither party is advised to go down this road unless it is absolutely necessary. Often a good forensic accountant will charge more per hour than the attorney. Often a basic review of the documents provided during discovery will show where all of the parties' marital income has been spent and that there isn't' anything to hide. An experienced family law attorney may be able to trace that money and dispel fears of hidden assets without having to hire an expert. Therefore, if a spouse believes that another spouse is hiding assets it is very important to review that claim with an attorney before proceeding.

Prenuptial agreements (also called premarital or antenuptial agreements) have been recognized and enforced by the New Mexico courts for many years. However, in 1995 the New Mexico legislature passed the Uniform Premarital Agreement Act, which provides specific rules for the formation and enforcement of prenuptial agreements and includes requirements that all prenuptial agreements must be in writing and its terms must be fair. Failure to follow the rules can result in difficulty enforcing the agreement in case of the later divorce of the parties. In case of a divorce, the validity of the agreement will affect the division of property and debt and alimony among other issues.

In order to avoid a determination that a prenuptial agreement is grossly unfair to one party, both parties should have legal representation when negotiating a prenuptial agreement, there should be full disclosure of both parties' income and assets and the prenuptial agreement should not be presented for negotiation to close the wedding date. Following these suggestions can help bolster the validity of the prenuptial agreement by showing that both parties were fully informed of their rights when signing the agreement and that neither party was pressured to do so.

Although the general rule underlying prenuptial agreements is that competent adults are free to enter into whatever contracts they choose, with some limitations. In New Mexico, prenuptial agreements can cover the following topics: 1) present and future rights and obligations with respect to property, including income or earnings; 2) the right to manage, sell and encumber property; 3) division of property upon the death of either party or divorce; 4) the making of a will and power of attorney; 5) ownership and distribution of the proceeds from a life insurance policy; 6) the choice of law that will govern the agreement; and 7) anything other topic that does not violate the public policy of New Mexico.

While the rules governing prenuptial agreements may seem straightforward, they can be tricky, especially a determination of whether or not a provision violates public policy. Therefore, it is very important that both parties contemplating entering into a prenuptial agreement consult with a New Mexico Divorce and Family Law Attorney who can advise each party of their rights under New Mexico law and help ensure that a prenuptial agreement will stand up in Court if it is ever challenged.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

For the most part, family law matters, including divorce, child custody and time-sharing and child support are governed by the States, which means that most of the case law relevant to New Mexico family law issues comes from the New Mexico courts. However, the United States Supreme Court recently issued a family law decision regarding parents' rights and duties when taking children to foreign countries.

In the recent United States Supreme Court case of Abbot v. Abbot, No. 08-645, the Supreme Court was charged with interpreting the Hague Convention on the Civil Aspects of International Child Abduction (Convention) and International Child Abduction Remedies Act (ICARA), which govern, among other things, parents' rights and remedies when their children are taken to another country without their permission. In Abbot, the married parties moved to Chile with their son and then separated. The Chilean court granted the mother primary custody and granted the father regular visitation. Subsequently, the mother took the child to Texas without the father's permission. The father then filed a suit in the federal court in Texas asking the court to order his child's return.

His request was initially denied by the federal court, but the Supreme Court reversed that decision and found that Chilean law gave the father custody rights, which in turn, gave the father the right to refuse consent to the mother's taking of the child out of the country under the Hague Convention. Based on the Court's ruling in Abbot, it is very clear that the United States takes the custody decisions of countries that adhere to the Hague Convention very seriously and, in turn, expects those participating countries to give the same respect to American child custody and time-sharing orders.

Child custody cases involving international travel and/or international relocation of one of the parents with the child are complex and rife with hazards. The Hague Convention, and the federal laws that enforce it, are very complicated and can involve not only the Courts of the respective jurisdictions but also the United States Department of State's Office of Children's Issues. Any person facing a custody dispute that involves international travel or international relocation to or from New Mexico should contact a New Mexico divorce and family law attorney.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Often in a divorce or parentage cases, parents split up when a child is very young. In New Mexico, the courts keep jurisdiction over child support until a child reaches the age of 18, or past the age of 18 if the child is still in high school. However, New Mexico lawmakers understood that the circumstances on which an initial child support award is based can change substantially between the time child support is first calculated and the date the child turns 18.

In order to ensure that child support awards are fair and in keeping with the child support guidelines, the child support statue allows either parent to motion the court to modify child support. In order to ask for such a change, the parent seeking a change must file a motion informing that court that there has been a substantial change in circumstances that will cause child support to increase or decrease by at least 20%. A substantial change in circumstances can include things like one parent losing their job or getting a new job that pays more. A motion to modify child support can also be based on changes to the parents' time-sharing and visitation schedule that result in the child spending an increased amount of time with a particular parent or, in the case of child support awards for multiple children, one child turning 18 or graduating from high school.

If a parent believes that a change in child support is warranted, then it is very important to file the motion to modify as soon as possible because the court will only retroactively award support back to the date of the motion to modify. Unless jurisdiction has been changed, the motion to modify should be filed with the district court that issued the original child support award. If the parties cannot agree to a modification, the court will hold a hearing on the issue and will most likely order the parties to exchange updated income information. In some counties, including Bernalillo, Sandoval and Valencia, the court may refer child support modifications to a hearing officer who will have the same power as a judge to enforce a new child support award. No matter where you are, any parent thinking about filing a motion to modify child support should speak to a New Mexico divorce and family law attorney to make sure that they are in compliance with the child support statute.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

In order to protect victims of domestic violence, the New Mexico legislature enacted the Family Violence Protection Act, which authorizes the courts to issue a type of civil restraining order called an Order of Protection. If an Order of Protection is entered, it prevents the person committing the domestic violence or abuse (called the Restrained Party) from having any contact with the victim of that abuse (called the Protected Party). A party that violates the provisions of an Order of Protection may face criminal and civil penalties. In some case, the Restrained Party may also be the victim of abuse by the alleged Protected Party.

The procedure under the Family Violence Protection Act requires that the a person be personally served with the Petition for Order of Protection before an Order of Protection may be entered against him or her. The alleged domestic violence offender must also be allowed to appear at a hearing to answer to the charges in the petition. If a Restrained Party believes that he or she is also a victim of abuse by the person filing the petition, then he or she may file a counter-petition informing the court of that abuse and asking that an Order of Protection be entered against the other party.

A counter-petition for an Order of Protection follows the same basic format as the petition and must be filed before the hearing on the original order of protection is held. If the court finds that both parties have committed domestic abuse against each other, it may enter what's called a Mutual Order of Protection, which means that both parties can face criminal and civil penalties for making contact with the other party. However, the court will not issue a Mutual Order of Protection if a counter-petition has not been filed. Thus, if a person is served with a petition for Order of Protection, it is important that they contact a New Mexico Divorce and Family Law Attorney immediately in order to ensure that they understand all of their legal rights, including the right to file a counter-petition.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com